Subject: Re: Examples needed against Soft Patents
From: "Stephen J. Turnbull" <>
Date: Thu, 20 Jan 2005 02:49:04 +0900

>>>>> "Seth" == Seth Johnson <> writes:

    Seth> "Stephen J. Turnbull" wrote:

    >> Or perhaps combining it with 3.  The Constitution does not
    >> _require_ that Congress grant protection, it allows it to do
    >> so.

    Seth> It isn't even put in terms of "protection" -- just as a
    Seth> power of Congress to stipulate exclusive rights that authors
    Seth> and inventors may exercise.  Of course, this distinction
    Seth> turns of shades of meaning of "protection," but it's
    Seth> important to remember that protection isn't really
    Seth> consistent with copyright -- it's not some sort of prior
    Seth> restraint that stops you from parsing a work that's been
    Seth> published -- it's more about recourse and enforcement.
    Seth> Talking in turns of protection really gets off the
    Seth> established track.

I don't see how.  Certain rights are protected by law, and you sure
can get a restraining order to prevent distribution, even require
destruction, of illegal copies, _before_ any harm is proved.  I
believe that copyright law has always defined criminal offenses, and
those provisions have been strengthened, along with the strengthening
of provisions for statutory damages.

I didn't mean to imply the kind of protection that we mean when we
talk about trade "protection", and even patents (in the modern sense;
indeed, the patent that the British East India Company received _did_
explicitly protect it from all competition) don't envision
that---Xerox faced serious competition long before the basic
xerography patents expired.  Ditto LWZ, sufficiently good competition
that AFAICT all Unisys managed to accomplish was to dramatically
hasten diffusion of the beneficial innovations known as "gzip" and

    Seth> Also, copyright precedent very clearly says that the
    Seth> information contained within expressive works is fair game,
    Seth> that in fact that's the whole point of copyright.

True.  But protection can be limited, eg, like last year's flu shot
doesn't help against this year's flu.  Tim O'Reilly does all right
using copyright protection for better expression of freely available

Hm.  You usually have a good point even though I might disagree, but
this time I just don't see it.  What am I missing?  Where are you
going with this?

Institute of Policy and Planning Sciences
University of Tsukuba                    Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
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